F I L E DUnited States Court of AppealsTenth CircuitOCT 10 2001

PATRICK FISHERClerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES R. TATE,

Plaintiff-Appellant, v. No. 99-6329FARMLAND INDUSTRIES, INC.,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-98-1072-L)

Van H. Cline, Norman, Oklahoma, for Plaintiff-Appellant.

Marc Edwards (Sandy L. Schovanec with him on the brief), of Phillips,McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, Oklahoma,for Defendant-Appellee.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Farmland Industries Inc., employed Plaintiff Charles R. Tate

in 1987 to operate a commercial motor vehicle (CMV) hauling propane and other

1 By federal definition, a commercial motor vehicle (CMV) is “usedon a highway in interstate commerce” and weighs at least 10,001 pounds.49 C.F.R. § 390.5.

2

refined fuel products.1 In 1995, Plaintiff began taking antiseizure medication to

control focal seizures, episodes of jerking on the left side of his body. In 1998,

Defendant terminated Plaintiff’s employment as a CMV operator due to his health

condition. According to Defendant, Plaintiff’s use of antiseizure medication

rendered him physically unqualified to operate a CMV.

Following his termination, Plaintiff filed this action against Defendant

alleging violations of (1) the Americans With Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213, and (2) the Family and Medical Leave Act (FMLA), 29 U.S.C.

§§ 2601-2654. The district court granted summary judgment for Defendant on

Plaintiff’s ADA claim, and dismissed Plaintiff’s FMLA claim for failure to state

a cause of action. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C.

§ 1291. We affirm in part, reverse in part, and remand.

I.

In October 1996, a Department of Transportation (DOT) authorized medical

examiner, Dr. Larry G. Stabler, evaluated Plaintiff as required by federal law and

issued him a CMV operator’s medical certification. During the examination,

Plaintiff disclosed he had been taking the antiseizure medication Dilantin since

the fall of 1995 to control focal seizures related to Lyme Disease. Dr. Stabler

3

examined Plaintiff again in November 1997 for recertification. On the medical

examination form, Plaintiff again disclosed his use of Dilantin, and, apparently

for the first time, also indicated a history of “seizures, fits, convulsions or

fainting.” Nevertheless, Dr. Stabler certified Plaintiff as physically qualified

to operate a CMV.

Upon reviewing Plaintiff’s 1997 certification, Defendant’s Occupational

Health Coordinator (OHC) noticed that Plaintiff’s examination record reported

a history of seizures. The OHC sent a memo to Plaintiff’s supervisor requesting

additional information. In the memorandum, the OHC wrote that Plaintiff–

indicated a “yes” for seizures, convulsions, and for medications,lists Dilantin–an anticonvulsant. Seizures have never been indicatedon previous physicals. The physical done a year ago, Dilantin waslisted “as precautionary measure for past history of Lyme disease.”According to the PDR (drug/medication reference), Dilantin isprescribed only for seizure control.

Responding to Defendant’s request for information, Plaintiff’s neurologist,

Dr. James E. Duncan, sent a letter to Defendant explaining that Plaintiff suffered

from focal seizures. Focal seizures are episodes of jerking on the left side of the

body without loss of consciousness. Dr. Duncan confirmed that Plaintiff was

taking Dilantin, but indicated Plaintiff experienced warning symptoms prior to

the onset of a seizure. Dr. Duncan also indicated Plaintiff had not suffered

a focal seizure in the past two years.

4

On or about January 2, 1998, Defendant placed Plaintiff on sick leave

while determining whether his history of seizures and use of antiseizure

medication would permit him to continue working as a CMV operator. Effective

January 30, 1998, while Plaintiff remained on sick leave, Defendant officially

terminated Plaintiff’s employment. According to Defendant, Plaintiff was not

physically qualified to operate a CMV because Plaintiff’s use of antiseizure

medication necessarily prohibited him from meeting the physical requirements

for CMV operators.

II.

Subchapter III of the Commercial Motor Vehicle Safety Act, entitled

“Safety Regulation,” 49 U.S.C. §§ 31131-31148, authorizes the Secretary of

Transportation to prescribe “minimum safety standards” to ensure “the physical

condition of operators of commercial motor vehicles is adequate to enable them

to operate the vehicles safely.” Id. § 31136(a)(3). To that end, Department of

Transportation (DOT) regulations dictate that “[a] person shall not drive a

commercial motor vehicle unless he is physically qualified to do so . . . .”

49 C.F.R. § 391.41(a). Among other things, a person is physically qualified

to drive a CMV if that person “[h]as no established medical history or clinical

diagnosis of . . . any . . . condition which is likely to cause loss of consciousness

or any loss of ability to control a commercial motor vehicle.” Id. § 391.41(b)(8).

5

DOT’s interpretation of its own regulations strongly suggests that a driver who

is taking antiseizure medication for any reason is not qualified to drive a CMV.

Department of Transportation’s Federal Highway Administration, Federal Motor

Carrier Safety Regulations § 391.41(b)(8), at 411 (Mgmt. ed. 1998) (Medical

Advisory Criteria for Evaluation Under 49 C.F.R. Part 391.41) (hereinafter

“Medical Advisory Criteria”).

III.

The ADA provides in relevant part that “[n]o covered entity shall

discriminate against a qualified individual with a disability because of the

disability of such individual in regard to . . . discharge of employees, . . . and

other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

To establish a prima facie case of discrimination under the ADA, a plaintiff must

demonstrate “‘(1) that [he] is disabled within the meaning of the ADA; (2) that

[he] is qualified–with or without reasonable accommodation; and (3) that [he]

was discriminated against because of [his] disability.’” McKenzie v. Dovala,

242 F.3d 967, 969 (10th Cir. 2001) (quoting Aldrich v. Boeing Co., 146 F.3d

1265, 1269 (10th Cir. 1998)). The ADA defines the term “disability” as “(A) a

physical or mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record of such an impairment; or

(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2).

2 We review the district court’s grant of summary judgment under Fed.R. Civ. P. 56 de novo, applying the same legal standard as the district court.Watson v. Beckel, 242 F.3d 1237, 1239 (10th Cir. 2001).

3 While the district court did not address the second prong of the ADA’sprima facie case, which requires a showing that Plaintiff is qualified for thedesired position, we may affirm on any ground supported by the record. SeeGowan v. United States Dep’t of the Air Force, 148 F.3d 1182, 1189 (10thCir. 1998).

6

In granting summary judgment for Defendant on Plaintiff’s ADA claim,2

the district court focused on the question of whether Plaintiff was disabled within

the meaning of the ADA. The court concluded Plaintiff was not disabled because

he failed to establish he was “substantially limited” in the “major life activity” of

working. Furthermore, the district court concluded Defendant did not “regard”

Plaintiff as disabled, but instead perceived him only as unable to obtain CMV

certification under DOT’s Medical Advisory Criteria. We need not decide,

however, whether Defendant was disabled as required under the first prong of

the ADA’s prima facie case. Rather, we conclude as a matter of law that Plaintiff

cannot satisfy the second prong of the prima facie case because he could not meet

Defendant’s physical requirements for CMV operators, and thus was not qualified

to operate a CMV.3 See Mathews v. The Denver Post, F.3d , , 2001 WL

967797 at *2 (10th Cir. 2001) (declining to consider whether plaintiff was

disabled under the ADA where he was not qualified for the desired position).

4 Plaintiff appears to seek no position with Defendant other than CMVoperator, and has suggested no means by which Defendant could reasonablyaccommodate him other than by simply accepting his medical certification. SeeSmith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (en banc)(employee bears the initial responsibility of expressing a desire for reassignmentif no reasonable accommodation is possible in his present position). Instead,Plaintiff steadfastly maintains that he can perform the essential functions of aCMV operator, and that Defendant has no authority to override his CMVcertification.

7

A.

The ADA defines a “qualified individual with a disability” as “an

individual with a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8).4 As a condition to performing the

essential functions of an employment position, however, an individual must

first satisfy “the requisite skill, experience, education and other job-related

requirements of the employment position.” 29 C.F.R. § 1630.2(m). If a plaintiff

fails to establish that he has met either step of this analysis, he is not a “qualified

individual” within the meaning of § 12111(8). See Basith v. Cook County, 241

F.3d 919, 927 (7th Cir. 2001) (explaining that the question of whether someone

is a “qualified individual with a disability” involves a two-step inquiry); Garcia-

Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000) (same);

Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 1999) (same); Foreman v.

Babcock & Wilcox Co., 117 F.3d 800, 810 n.14 (5th Cir. 1997) (same).

8

The question of whether a job requirement is a necessary requisite to

employment initially focuses on whether an employer actually requires all

employees in the particular position to satisfy the alleged job-related requirement.

Cf. Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995) (holding under

the ADA that an essential function of a job must be actually required of all

employees in the particular position). This inquiry is not intended to second

guess the employer or to require the employer to lower company standards. Id.;

see also H. Rep. No. 101-485(II), at 55 (1990), reprinted in 1990 U.S.S.C.A.N.

303, 337 (The ADA “does not undermine an employer’s ability to choose and

maintain qualified workers.”). Provided that any necessary job specification

is job-related, uniformly-enforced, and consistent with business necessity,

the employer has the right to establish what a job is and what is required

to perform it.

The foregoing is consistent with the ADA’s legislative history, which

speaks directly to an employer’s application of DOT’s physical standards to

CMV operators:

With respect to covered entities subject to rules promulgated bythe Department of Transportation regarding physical qualificationsfor drivers of certain classifications of motor vehicles, it is theCommittee’s intent that a person with a disability applying for orcurrently holding a job subject to these standards must be ableto satisfy any physical qualification standard that is job relatedand consistent with business necessity in order to be considereda qualified individual with a disability . . . .”

5 DOT’s interpretation of § 391.41(b)(8) reads in relevant part:

§ 391.41(b)(8)–A person is physically qualified to drive acommercial motor vehicle if that person:

Has no established medical history or clinical diagnosis ofepilepsy;

or

Any other condition which is likely to cause the loss ofconsciousness; or any loss of ability to control a commercial

(continued...)9

H. Rep. No. 101-485(II), at 57, reprinted in 1990 U.S.C.C.A.N. at 339 (emphasis

added). Indeed, DOT regulations mandate that an employer “not require or permit

a person to drive a commercial motor vehicle unless that person is qualified to

drive a commercial motor vehicle.” 49 C.F.R. § 391.11(a).

B.

DOT regulations state that a person is physically qualified to drive a

CMV if that person has no clinical diagnosis of a condition likely to cause

“loss of ability to control” a CMV. 49 C.F.R. § 391.41(b)(8). As a supplement

to DOT regulations, DOT’s Medical Advisory Criteria set forth in detail DOT’s

recommended physical qualifications for CMV operators. The Medical Advisory

Criteria strongly suggest that persons taking antiseizure medication, whether for

epilepsy or other medical reason, cannot be qualified to drive CMVs. Medical

Advisory Criteria § 391.41(b)(8), at 411.5 According to the Medical Advisory

5(...continued)motor vehicle. [emphasis in original].

Epilepsy is a chronic functional disease characterized by seizuresor episodes that occur without warning, resulting in loss of voluntarycontrol which may lead to loss of consciousness and/or seizures.Therefore, the following drivers cannot be qualified:

1. a driver who has a medical history of epilepsy; or 2. a driver who has a current clinical diagnosis of epilepsy; or 3. a driver who is taking antiseizure medication.

If an individual has had a nonepileptic seizure or an episode of lossof consciousness of unknown cause which did not require antiseizuremedication, the decision as to whether that person’s condition mayresult in the loss of consciousness or loss of ability to control a motorvehicle is made on an individual basis by the medical examiner inconsultation with the treating physician. . . .

In those individual cases where a driver had a nonepileptic seizureor an episode of loss of consciousness that resulted from a knownmedical condition (e.g., drug reaction, high temperature, acuteinfectious disease, dehydration, or acute metabolic disturbance),certification should be deferred until the driver has fully recoveredfrom that condition, has no existing residual complications, and isnot taking antiseizure medication. [emphasis added].

10

Criteria, the decision as to medical certification should be individualized only

where a person who has had a nonepileptic seizure is not taking antiseizure

medication. Otherwise, such individual is not qualified to operate a CMV.

See 29 C.F.R. § 1630.2(n)(2)(i) (a job function may be considered essential

because the reason the position exists is to perform the function).

6 The Medical Advisory Criteria are prefaced with a note that statesin relevant part:

Unlike regulations which are codified and have a statutorybase, the recommendations in this advisory are simply guidanceestablished to help the medical examiner determine a driver’smedical qualifications pursuant to § 391.41 of the Federal MotorCarrier Safety Regulations (FMSCRs). . . . The medical examinermay, but is not required to, accept the recommendations. Section390.3(d) of the FMSCRs allows employers to have more stringentmedical requirements.

Medical Advisory Criteria at 407.

11

Admittedly, DOT’s Medical Advisory Criteria are prefaced with a note

indicating they are only advisory and nonbinding.6 Nevertheless, the views of

an agency such as DOT implementing a regulatory scheme designed to ensure

the safety of our nation’s highways “‘constitute a body of experience and

informed judgment’” to which employers may properly resort for guidance.

United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001) (quoting Skidmore

v. Swift & Co., 323 U.S. 134, 139-40 (1944)). We hesitate to second guess a

legitimate business judgment on the part of DOT and its covered employers as

to the necessary qualifications of CMV operators. As then Chief Judge, now

Justice Breyer opined: “We doubt that . . . the Department [of Transportation]

could not adopt reasonable rules concerning the relationship between certain

handicaps . . . and certain activities like driving.” Ward v. Skinner, 943 F.2d

157, 161-164 (1st Cir. 1991) (Breyer, C.J.) (upholding DOT’s refusal to provide

7 This case is quite similar to Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872 (D. Kan. 1996), aff’d, No. 96-3380, 1998 WL 105933 (10th Cir.1998) (unpublished), aff’d, 527 U.S. 516 (1999). In that case, plaintiff’s jobas a mechanic required him to drive UPS tractor-trailers for road tests and repaircalls. DOT regulations, namely 49 C.F.R. § 391.41(b)(6), provided that a personwith a current clinical diagnosis of high blood pressure was not physicallyqualified to drive a CMV. The same Medical Advisory Criteria upon whichDefendant relied in this case described high blood pressure as greater than160/90. Plaintiff, who suffered from high blood pressure, could not take theamount of medication necessary to lower his blood pressure to that levelwithout further damaging his health. Although plaintiff had obtained a licensedphysician’s medical certification to drive, the district court concluded, basedupon DOT’s Medical Advisory Criteria, that plaintiff was not qualified tooperate a CMV within the meaning of the ADA.

12

a truck driver taking antiseizure medication “an individualized inquiry that

would permit him to escape the application of a general agency rule” embodied

in a task force recommendation). We have little difficulty concluding that

Defendant may rely on a reasonable interpretation of DOT’s Medical Advisory

Criteria, which undoubtedly are job-related and consistent with Defendant’s

safety and liability concerns, to establish physical requirements for its CMV

operators, provided Defendant does so consistently and uniformly.7 Subject to

DOT’s minimum standards, Defendant as the employer has the prerogative of

determining what is physically required of its CMV operators. See 49 C.F.R.

§ 390.3(d) (employers may mandate “more stringent requirements relating to

safety of operation and employee safety and health”).

8 The record contains no evidence to suggest Defendant treated Plaintiffdifferently than other CMV operators in its employ, or used DOT standards asa pretext to terminate Plaintiff.

13

C.

In this case, Defendant’s independent review of Plaintiff’s status led

to the conclusion that Plaintiff was not physically qualified to operate a CMV

under established safety standards. Plaintiff argues however, that Defendant

cannot override his medical examiner’s certification. While we are not

unsympathetic to Plaintiff’s circumstance, we disagree. Due to legitimate

safety and liability concerns, Defendant maintains a policy of requiring CMV

operators to qualify to operate CMVs in compliance with DOT’s physical

requirements–including those requirements set forth in § 391.41(b)(8) of the

Medical Advisory Criteria.8 See Chandler v. City of Dallas, 2 F.3d 1385, 1395

(5th Cir. 1993) (“Woe unto the employer who put . . . an [unqualified] employee

behind the wheel of a vehicle owned by the employer which was involved in a

vehicular accident.”).

Although Defendant acknowledged during discovery that Plaintiff could

perform the essential functions of a CMV operator while taking the prescribed

dosage of Dilantin, the fact that Plaintiff must take Dilantin to control focal

seizures necessarily renders Plaintiff unable to meet a job-related requirement of

the employment position, a requirement established by Defendant under DOT’s

14

standards. See Ward, 943 F.2d at 161-64 (noting the risk of seizure to an

epileptic taking antiseizure medication “is low only if the individual actually

takes his medicine; he may forget”). Because Plaintiff cannot meet the necessary

job-related physical requirements to perform as a CMV operator in Defendant’s

employ, he is not a “qualified individual with a disability” as defined in 42 U.S.C.

§ 12111(8). Accordingly, the district court properly granted summary judgment

in favor of Defendant on Plaintiff’s ADA claim.

IV.

Plaintiff also challenges the district court’s dismissal of his FMLA claim

involving the period of time immediately following his termination. Plaintiff

argues Defendant terminated him without first providing him “sick leave” to

which he was entitled under the FMLA. The FMLA provides in relevant part:

an eligible employee shall be entitled to a total of 12 workweeks ofleave during any 12-month period for one or more of the following:

. . . (D) Because of a serious health condition that makes the employeeunable to perform the functions of the position of such employee.

29 U.S.C. § 2612(a)(1)(D). A “serious health condition” includes “an illness,

injury, impairment, or physical or mental condition that involves . . . continuing

treatment by a health care provider.” Id. § 2611(11)(B).

A.

In his first amended complaint, Plaintiff alleged “[d]efendant knew that

9 We review a complaint’s dismissal under Fed. R. Civ. P. 12(b)(6) forfailure to state a claim de novo. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292(10th Cir. 2001).

10 To be covered under the FMLA, an employer must employ fifty or morepeople and engage in interstate commerce. Stoops v. One Call Communications,Inc., 141 F.3d 309, 311-12 (7th Cir. 1998) (citing 29 U.S.C. § 2611(2)).Defendant does not deny that it is a “covered” employer under the FMLA.

15

at all times relevant, up to and including the termination of his employment,

plaintiff was taking the medication Dilantin prescribed by his treating

neurologist.” Plaintiff further alleged:

Defendant regarded plaintiff to be unfit to perform his job becauseof a serious health condition. Defendant had placed plaintiff on sickleave, and he was on sick leave when defendant fired him. At thetime of said firing, plaintiff still had accrued sick leave remaining.Nonetheless, defendant did not provide plaintiff with notice of hisrights under the FMLA and did not provide him leave as requiredby the FMLA.

See Plant v. Morton Int’l, Inc., 212 F.3d 929, 934-36 (6th Cir. 2000) (employee

not precluded from asserting an FMLA claim where he would have been unable

to return to work within a twelve-week period following his termination).

In dismissing Plaintiff’s FMLA claim, the district court concluded that

Plaintiff failed to allege the necessary elements to maintain an action under

the FMLA.9 To be an “eligible employee” under § 2612(a)(1)(D), a claimant

must have worked 1,250 hours in the twelve months immediately preceding

his employer’s alleged violation of the FMLA. Id. § 2611(2)(A)(ii).10 As the

district court noted, Plaintiff’s complaint failed to allege this time requirement.

16

Such failure, however, is a technical defect easily cured by amendment.

Plaintiff alleged generally that from March 1996 until his termination in

January 1998, Defendant employed him as a truck driver. We infer from this

allegation that Plaintiff satisfied the time requirement under § 2611(2)(A)(ii).

Therefore, Plaintiff’s failure to specifically reference the 1,250-hour time

requirement in his complaint does not warrant dismissal of Plaintiff’s FMLA

claim with prejudice. See Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir.

2001) (“[D]ismissal under Rule 12(b)(6) without affording the plaintiff notice

or an opportunity to amend is proper only when it is ‘patently obvious’ that the

plaintiff could not prevail on the facts alleged, and allowing him an opportunity

to amend his complaint would be futile.”).

B.

The district court also reasoned that Plaintiff failed to allege he requested

FMLA benefits from Defendant. The district court concluded such an allegation

was necessary to maintain an action under the FMLA because “[i]t is axiomatic

that defendant cannot have denied benefits that were never sought.” The FMLA,

however, does not require a covered employee to specifically ask for FMLA

benefits. An employee need not expressly assert rights under the FMLA or

even mention the FMLA. See 29 C.F.R. §§ 825.302(c), 825.303(b); Manuel v.

Westlake Polymers Corp., 66 F.3d 758, 761-64 (5th Cir. 1995). If the employer

11 The district court further suggested that Plaintiff had no private causeof action against Defendant for violation of “the FMLA’s notice requirements.”The FMLA’s notice requirements on which the district court relied to supportits suggestion, however, are not involved in this case. Plaintiff did not allegea violation of the notice-posting requirements set forth in 29 U.S.C. § 2619.Rather, Plaintiff claims Defendant’s failure to personally notify him of his FMLArights in connection with his termination constituted interference with those rightsunder 29 U.S.C. § 2615(a)(1). Section 2615(a)(1) of the FMLA prohibits anemployer from interfering with the exercise or attempt to exercise any rightprovided by the FMLA. Section 2617(a)(2), in turn, authorizes an eligibleemployee to bring a civil action against an employer for violating § 2615.Id. § 2617(a)(2). Accordingly, if sufficiently plead, Plaintiff maymaintain a private cause of action for a violation of his FMLA rights.

17

is on notice that the employee might qualify for FMLA benefits, the employer

has a duty to notify the employee that FMLA coverage may apply. See 29

C.F.R. § 825.208(a). Pending its review of Plaintiff’s health status, Defendant

placed Plaintiff on involuntary sick leave. Thus, Defendant was clearly on

notice that Plaintiff might qualify for FMLA benefits since Defendant triggered

Plaintiff’s leave. Given Plaintiff’s allegation that Defendant placed him on sick

leave, Plaintiff need not allege he provided Defendant with notice of his rights

under the FMLA.11

C.

Despite the foregoing, Defendant argues that Plaintiff did not have a

serious health condition as required under 29 U.S.C. § 2612(a)(1)(D). Rather,

Defendant points to Plaintiff’s insistence that he is able to perform his job as a

CMV operator despite his medical condition. Nevertheless, the complaint alleges

18

that Defendant considered Plaintiff “unfit” to operate a CMV “because of a

serious health condition.” The FMLA’s definition of a “serious health condition”

includes a “physical . . . condition that involves . . . continuing treatment by a

health care provider.” Indeed, Defendant placed Plaintiff on involuntary sick

leave precisely because he has a health condition which requires a physician’s

continuing treatment. We doubt that many employees placed on involuntary

leave for health reasons would consider themselves unable to perform their job.

Common sense tells us that this view does not render such employees unable

to assert their leave rights under the FMLA.

D.

While we express no opinion on the ultimate outcome of Plaintiff’s FMLA

claim, we cannot conclude under these circumstances that Plaintiff failed to allege

sufficient facts in his first amended complaint to state such a claim. Accordingly,

the district court erred in dismissing Plaintiff’s FMLA claim under Fed. R. Civ. P.

12(b)(6) with prejudice.

AFFIRMED in part, REVERSED in part, and REMANDED.

No. 99-6329, Tate v. Farmland Industries, Inc.

BRISCOE, Circuit Judge, dissenting:

I respectfully dissent. First, I would conclude Tate was qualified because

Farmland conceded that issue in a request for admission. Second, I would

conclude there was a genuine issue of material fact as to whether Tate was

regarded as disabled by Farmland. Third, Tate cannot state a claim under the

FMLA because his only argument on appeal is that he had a nonlimiting

medical condition that was perceived as limiting.

As stated by the majority, to establish a prima facie case of

discrimination under the ADA, a plaintiff must demonstrate, “'(1) that [he] is

disabled within the meaning of the ADA; (2) that [he] is qualified – with or

without reasonable accommodation; and (3) that [he] was discriminated against

because of [his] disability.'” McKenzie v. Duvall, 242 F.3d 967, 969 (10th Cir.

2001) (quoting Aldrich v. Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998)).

See Majority Op. at 5. Tate contends he was disabled as defined by the ADA

because Farmland regarded him as having a physical impairment that limited

one or more of his major life activities. See 42 U.S.C. § 12102(2)(c). He

argues throughout that he does not have a limiting impairment.

I.

The majority concludes that Tate was not a “qualified individual” as defined by

the ADA. Whether a person is “qualified” under the ADA is a two-step analysis:

2

First, we must determine whether the individual could perform theessential functions of the job, i.e., functions that bear more than amarginal relationship to the job at issue. Second, if (but only if) weconclude that the individual is not able to perform the essential functionsof the job, we must determine whether any reasonable accommodation bythe employer would enable him to perform those functions.

Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995) (emphasis added). In

response to Tate's first set of requests for admission, Farmland admitted “that at the

time [Tate's] employment was terminated by [Farmland], [Tate] was physically and

mentally able to perform the essential functions of his job with [Farmland].” Aplt.

App. at 233 (emphasis added). This admission tracks the language in Milton.

Although Tate argued before the district court that this admission was binding,

Farmland did not formally address the issue. It only discussed the merits of whether

Tate was a qualified individual. Similarly, the district court ruled on the merits. On

appeal, notwithstanding this admission, Farmland argues that one of the “essential

functions” of Tate's job was meeting the heightened “physical” standards set forth by

the DOT regulations. See Aple. Br. at 10.

Once a party makes an admission, the fact is “conclusively established.” See

Fed. R. Civ. P. 36(b). A party may not obtain relief from its admission unless “the

court on motion permits withdrawal or amendment of the admission.” Id. Farmland

does not argue it should not be bound by its admission. Absent such relief being

granted by the district court, it has been conclusively established that Tate was a

1 In response to a requested admission “that at the time his employmentwas terminated by [Farmland], [Tate] had all governmental licenses andcertifications necessary for him to perform his job with [Farmland],” Farmland“[a]dmitted that [Tate] held a DOT Certification Card, but he was not a qualifieddriver under DOT Regulations and FHA regulations and interpretations.” Aplt.App. at 232. It is questionable whether this response could negate the previously-quoted admission which refers to Tate's ability to perform the essential functionof his Farmland job. At best, there is a genuine issue of material fact as towhether Tate was qualified.

3

“qualified individual” as defined by the ADA.1

II.

There are two ways a plaintiff can show he or she was “regarded as” having a

disability. First, he or she can show “a covered entity mistakenly believes that the

person has a physical impairment that substantially limits one or more major life

activities.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 499 (10th Cir. 2000) (internal

quotations omitted). Second, he or she can show “a covered entity mistakenly believes

that the person's actual nonlimiting impairment substantially limits one or more major

life activities.” Id.

Tate invokes the latter. Although before the district court he only contended he

“was regarded by [Farmland] to have a physical impairment that substantially limited

one or more of his major life activities,” Aplt. App. at 207, on appeal he tailors his

contention to better conform with case authority by contending “Farmland mistakenly

believed Tate's nonlimiting medical condition substantially limited one or more of his

major life activities.” Aplt. Br. at 28. For Tate to recover under this theory, “it is

4

necessary that [the employer] entertain misperceptions about the individual – it must

believe . . . that [the individual] has a substantially limiting impairment when, in fact,

the impairment is not so limiting.” Doyal, 213 F.3d at 499.

To prevail on his claim that there was a genuine issue of material fact as to

whether he was regarded as disabled, Tate must identify the “nonlimiting medical

condition” he was perceived as having, and the “major life activity” it was perceived to

substantially limit. On appeal, Tate alleges three major life activities were implicated –

working, driving, and maintaining consciousness. We should not consider

“maintaining consciousness” because Tate did not assert this claim before the district

court. We need not determine whether “driving” is in itself a major life activity

because working is clearly a major life activity under the ADA. See Davoll v. Webb,

194 F.3d 1116, 1134 n. 11 (10th Cir. 1999). Since Tate has identified one recognized

major life activity, I next address whether he had a nonlimiting medical condition that

was perceived as substantially limiting his ability to work.

Was Tate's taking of Dilantin the medical condition that was nonlimiting, but

perceived by Farmland as limiting? Farmland first had information that Tate was

taking Dilantin in November 1996 when it received the 1996 certificate provided by

Tate's medical examiner. In response to the instruction to “[l]ist all drugs or

medications taken regularly,” the following is written: “Dilantin 400qd – as

precautionary measure for past history of Lymes Disease.” Aplt. App. at 115.

5

Farmland, however, took no action at that time. Tate's file was flagged and a

memorandum was sent by the occupational health coordinator to two safety managers

because of a discrepancy between the 1996 and 1997 certificates. On the 1997

certificate, Tate checked the “Yes” box for “[s]eizures, fits, convulsions or fainting”

and as an explanation stated he had seizures that resulted from Lymes Disease. Aplt.

App. at 118. The “No” box had been checked for 1996. The 1997 certificate also

noted Tate still was taking 400 milligrams of Dilantin per day. Out of concern raised

by Tate's notation regarding seizures, Farmland researched the medication and noted

Dilantin “is prescribed only for seizure control.” Aplt. App. at 335.

The evidence suggests that Farmland was not concerned exclusively with Tate's

intake of Dilantin. Rather, Farmland was concerned that Tate suffered from a “medical

condition” and that Dilantin was taken to combat the seizures resulting from that

medical condition. Tate argued before the district court and argues on appeal that he

was fired “because of [Farmland's] misperceptions of his medication and medical

condition.” Aplt. App. at 207; Aplt. Br. at 5. On appeal, he continues his focus on

both the medication and his medical condition.

The district court granted summary judgment to Farmland because (1) Farmland

“viewed [Tate] as not being certifiable” rather than being disabled, and (2) Farmland

did not view him as disqualified from a class of jobs or a broad range of jobs. Aplt.

App. at 754. However, whether Tate was certifiable “goes only to whether [he] is

6

qualified and whether [Farmland] has a defense based on the DOT regulations.”

Murphy, 527 U.S. at 522-23. Accordingly, the district court's emphasis on

qualifications when discussing disability was error.

Rather, the district court's focus should have been on whether the plaintiff

showed that the employer believed he had “a substantially limiting impairment when,

in fact, the impairment is not so limiting.” Doyal, 213 F.3d at 499 (quotation omitted).

“[T]he EEOC defines 'substantially limits' as: 'significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various classes as compared to

the average person having comparable training, skills and abilities.'” Murphy, 527

U.S. at 523 (quoting 29 C.F.R. § 1630.2(j)(3)(i) (1998)). “The evidence that petitioner

is regarded as unable to meet the DOT regulations is not sufficient to create a genuine

issue of material fact as to whether petitioner is regarded as unable to perform a class

of jobs utilizing his skills.” Id. at 524. Accordingly, Tate must be able to show that

Farmland perceived him as significantly restricted from performing either a class of

jobs or a broad range of jobs.

Viewing the facts in the light most favorable to Tate, there is a genuine issue of

material fact as to whether he was perceived as significantly restricted from performing

a broad range of jobs. Jack Curry, Farmland's manager of hazardous materials and

safety, stated that Farmland owned several non-commercial motor vehicle trucks and

that he believed it would have been unsafe for Tate to drive one of those trucks. Aplt.

7

App. at 310-11. This evidence indicates Farmland perceived Tate as restricted from

performing a broad range of jobs.

III.

The majority concludes that Farmland was on notice that Tate might qualify for

FMLA benefits when Farmland placed him on involuntary leave for health reasons.

The majority reverses the district court's dismissal of Tate's FMLA claim and remands

for further consideration. The FMLA entitles an “eligible employee” “to a total of 12

workweeks of leave during any 12-month period” when the employee has “a serious

health condition that makes the employee unable to perform the functions of the

position of such employee.” 29 U.S.C. § 2612(a)(1)(D). I would affirm the district

court's dismissal of the FMLA claim because Tate does not allege his health condition

made him unable to perform the functions of his position.

I agree with the majority that Tate's failure to allege he was an eligible employee

should not result in dismissal with prejudice of his claim. The second step in

determining whether Tate can invoke the FMLA is evaluating whether he had a

“serious health condition,” as defined by the statute, that made him unable to perform

the functions of his position. For purposes of the Act, the term “serious health

condition” means:

an illness, injury, impairment, or physical or mental condition thatinvolves –

(A) inpatient care in a hospital, hospice, or residential

2 Missing more than three consecutive calendar days of work is a requiredshowing for someone who contends he or she is undergoing continuing treatmentfor an illness. See 29 C.F.R. § 825.800.

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medical care facility; or(B) continuing treatment by a health care provider.

29 U.S.C. § 2611(11). Tate argued before the district court that his “medical condition

and his physician's continuing treatment of it with the prescription medication,

Dilantin, constituted a 'serious health condition' under the FMLA.” Aplt. App. at 741.

Arguably, seizures are a serious health problem. To have standing under the FMLA,

however, the serious health condition must “make[] the employee unable to perform

the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Tate

satisfied this standing requirement by summarily pleading that his seizures were a

serious health condition which required him to miss work for three or more

consecutive days.2 However, as regards his FMLA claim, Tate has consistently argued

that despite his medical condition he was able to perform the functions of his job,

Aplt. App. at 720 ¶ 9(f), Aplt. Br. at 22, and that Farmland fired him because it

perceived him as “disabled” and “medically disqualified” to perform his job. Aplt.

App. at 720 ¶ 9(e). Tate essentially asserted his FMLA claim as an alternative claim

should the court conclude he was not “medically qualified” to perform his job when he

was fired. Id. ¶ 9(h).

On appeal, Tate proceeds under the theory that Farmland regarded him as

9

disabled; specifically, that he had a nonlimiting condition that Farmland perceived as

limiting. Aplt. Br. at 55. There is no provision of the FMLA that would allow him to

recover because he was only “regarded as” having a serious medical condition that

made him unable to perform his job when he actually did not.

I would reverse the district court's grant of summary judgment on the ADA

claim and affirm the district court on the FMLA claim.